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Mike McCrum

Possibly the last thing I’m going to say about the Perry indictment for now

Certainly not the last thing I’ll ever say, since there’s a vast amount of the story left to be told, and I reserve the right to change my mind. But for now, since the indictment came down on Friday there’s been very little actual news. There’s been the over-the-top response from Perry’s legal team, there’s been the predictable tribal responses, there’s been a crap-ton of woefully ignorant pontificating from mostly non-Texas writers, but not much else worth talking about. So, until there is a new development, I’m going to leave with these two thoughts.

This Trib story about Texans for Public Justice, the group that filed the complaint that led to the indictment, contains a little tidbit of information that even I hadn’t realized but which ought to be a required inclusion in everything anybody writes about this saga from here on out.

Corndogs make bad news go down easier

Corndogs make bad news go down easier

TPJ didn’t plan to delve into the complex game of political chicken going on between Perry and Travis County District Attorney Rosemary Lehmberg near the end of last year’s legislative session. Lehmberg had been immersed in a political scandal since April, when a video of her aggressive behavior during her drunken driving arrest drew national attention. TPJ had stayed out of the drama until June 10, when [TPJ Director Craig] McDonald read in the Austin-American Statesman that Perry was threatening to veto the state’s funding of the Public Integrity Unit, housed in the Travis County DA’s office, unless Lehmberg resigned. Perry has said he only acted within the authority he has under the state Constitution.

“We decided [to get involved] that Tuesday morning,” McDonald said. “I said to Andrew [Wheat, TPJ research director], ‘This has got to be illegal. The governor can’t threaten the district attorney to do something that is out of his power. She doesn’t work for him. Never has.’”

Soon after, TPJ filed its complaint against Perry, hours before Perry vetoed the PIU’s $7.5 million budget.

Perry and his legal team have made his right as governor to veto state funding, and Lehmberg’s behavior during her drunken driving arrest, as central to the indictment. Various national political reporters and pundits have dismissed the indictment as overreaching or politically motivated, often pointing, like Perry, to a governor’s right to use his veto power.

McDonald said those critics are missing a crucial point: TPJ’s original complaint was filed before Perry implemented his veto because the veto is irrelevant.

“The threats are the issue, and I think that’s what the grand jury listened to,” McDonald said. “The only role the veto played and the only reason it’s relevant is that’s the club he held over his head to try to get her to leave her job. The veto is a side player to this. It’s not the subject of the charges.”

Emphasis mine. Did we all catch that? The complaint was filed before the veto was made. Let me repeat that, with formatting and an active voice construction: TPJ filed their complaint before Rick Perry vetoed the Public Integrity Unit funds. It wasn’t about the veto, it was about the threat, the coercion, of a duly elected public official that did not answer to Rick Perry. Anyone who opines about this in any fashion and doesn’t grasp that fact has no frigging idea what they’re talking about and should be ignored.

Another test for ignorance by those who bloviate about this case, in particular those who go on about Rosemary Lehmberg’s DUI arrest and of course it was sensible for Rick Perry to want a drunk DA to step down: Rosemary Lehmberg was the third District Attorney in Texas to be arrested for drunk driving during Rick Perry’s time as Governor. She was the first such DA to come under any pressure from Rick Perry about it. She was also the first such DA to be a Democrat. And yet it’s Rick Perry who’s the victim of a partisan vendetta, by a non-partisan special prosecutor appointed by a Republican judge who was appointed to hear the case by another Republican judge.

Oh, and one more thing, from Lisa Falkenberg:

In Harris County and other Texas jurisdictions where judges use the “pick-a-pal” system to empanel grand jurors, bias and corruption are natural byproducts. The judge picks a pal, called a “commissioner,” to go out and find some more pals to serve on a grand jury and supposedly mete out justice. The process, as I’ve written, has been outlawed in the federal system, and is still only used in Texas and California.

But it wasn’t used in this case.

[judge Bert] Richardson didn’t ask a buddy to empanel the grand jurors. The members were randomly selected from Travis County jurors who answered a summons – a similar process to the one used to select regular trial juries.

See this story as well. Grand juries are the prosecutors’ show, and we all know what they say about them. But still, a jury of ordinary citizens thought there was sufficient evidence of a crime to return two indictments. Mike McCrum didn’t indict Rick Perry, the grand jurors did.

Now it’s certainly possible for an informed observer to examine the indictments and think they’re a stretch. We really have never seen anything like this before, and generally speaking our laws about official misconduct have to do with money and/or influence in fairly direct ways. It’s fair to say that the laws Perry is accused of breaking weren’t really written with this situation in mind, probably because no one ever imagined this sort of situation might happen. That doesn’t mean that these laws don’t apply or that a fair jury couldn’t find Rick Perry guilty. It does mean that the appeals courts are someday going to perform fine surgery on some legal hairs, and one way or another we’ll have a clearer understanding of what these laws do mean, at least based on this experience.

But once we start down that path, we are – to borrow a legal phrase we all know from “Law and Order” – assuming facts not in evidence. We don’t know what Mike McCrum’s case is yet. We’ve heard plenty from Rick Perry and his high-priced legal team – the best lawyers the taxpayers can provide for him – and from his hackish sycophants in the national press. What have we heard from Mike McCrum, other than the indictment itself? Not much.

McCrum, asked in an interview earlier Monday about criticism that the case is weak, calmly defended it.

“The case is going to bear itself out in the long run, both from a legal standpoint and from a factual standpoint,” he said.

I’ll say it again: We just don’t know what cards Mike McCrum is holding. It’s certainly possible that he’s gone off on a wild hunt against Rick Perry for some reason. It’s possible he’s tendentiously misreading the law in an attempt for, I don’t know, fame and glory and a lifetime of being a legal expert on CNN or something. It’s possible he’s shooting from the hip and didn’t really think through how his actions would be scrutinized by criminal defense attorneys. There’s nothing in his history to suggest these things are true, but I don’t know Mike McCrum and I have no idea what’s in his head right now. What I do know is that we don’t know what his case will look like once it’s all been laid out in a courtroom. Maybe we’ll look back someday and say “Holy moly that was a load of crap, what in the world was Mike McCrum thinking?”, maybe we’ll say “That was a strong case but ultimately the jury/the Court of Criminal Appeals/SCOTUS didn’t buy it”, or maybe we’ll say “Where were you when Rick Perry was hauled off to the slammer?”. I for one am not making any predictions. And until there’s something new to talk about, I’m going to let it rest.

Look behind the scenes

There’s another angle to consider the Perry indictment saga, which is that the indictment isn’t so much about what Rick Perry said publicly regarding Rosemary Lehmberg and the Public Integrity Unit but what he was saying behind the scenes. Erica Greider explores this, with a minor detour first.

Corndogs make bad news go down easier

Corndogs make bad news go down easier

To review those facts, in 2013 the Travis County district-attorney, Rosemary Lehmberg, was arrested for drunk driving and sentenced to 45 days in jail. It was a penalty that no one could find fault with after viewing video footage of the field sobriety test and her subsequent behavior at the station that evening (she served about half the sentence and entered a treatment program after leaving prison). A number of Texans felt that she should resign, among them Perry, who publicly warned that he would use his line-item veto to remove state funding to the Public Integrity Unit—an anti-corruption outfit located in the Travis County DA’s office—unless she stepped down.

At the time, Democrats grumbled that Mr Perry’s threat was politically motivated. The Public Integrity Unit investigates corruption among statewide officials, which means, in the context, that it’s a check on Republicans like Perry and his pals. If Lehmberg stepped down, Perry would, in theory, have had a chance to replace a Democrat with a Republican appointee more friendly to his agenda. And after Lehmberg refused to resign and Perry vetoed the funding, the watchdog group Texans for Public Justice filed a complaint, charging that the veto had been politically motivated. That led to yesterday’s indictments; the charges are coercion and abuse of power.

Perry, unsurprisingly, responded Saturday by doubling down, dismissing the indictment as “outrageous.” More surprising, perhaps, is how quickly public opinion has moved in his favor, or at least in favor of proceeding with caution. Republicans were quick to rally round, but even independents and Democrats, after the initial fizzle faded, seemed skeptical of the indictment.

“Skeptical” is an overbid, some national pundits notwithstanding. (Some of those national pundits would do well to read Forrest Wilder. Or Progress Texas. Or me.) If Democrats here have tempered their response to this news, it’s not because we think Rick Perry is being railroaded, it’s because we’ve seen this movie before and we’ve learned the hard way how long a distance it is from “indictment” to “conviction”, especially a conviction that sticks. KBH walked. Tom DeLay may be let off the hook by the most pro-prosecution court in the country. We know better than to count our chickens before they hatch.

Back to the main thesis:

It’s worth emphasizing that the indictments don’t lay out all (or even much) of the special prosecutor’s evidence, and I suspect the focus on the veto, which is mentioned in the second count, will prove to be a red herring.

[…]

More intriguing, to me, is the chatter that around the time of the veto, Perry’s camp had some behind-the-scenes discussions with Travis County officials about a potential deal wherein, if Lehmberg resigned, he would appoint a Democrat to replace her. These rumors have been reported before, and several Democratic sources have suggested to me there’s something to it. This has always struck me as plausible. Perry’s critics argue that he was targeting Lehmberg opportunistically, as a way to stifle the PIU, either by removing its funding or by appointing a Republican to oversee it. But if Perry wanted to stifle the PIU, he could have simply vetoed its funding years ago (or, for that matter, left it in the care of the beleaguered Lehmberg). It would have been more shrewd, actually, to proceed quietly.

Worth considering is an alternative account of Perry’s political motivation. In June 2013, when he vetoed the PIU funding, he was signing the overall budget for the 2014-2015 biennium—a budget that restored billions of dollars of funding to public schools and expanded funding to worthy priorities such as higher education and mental health care. It was a budget that had been passed by the legislature with widespread bipartisan support and that was opposed only by a handful of tea partiers, who accused the Legislature and the governor of taking the state on a California-style spending spree. They were wrong, but they were clamorous, and Perry’s defense of the budget risked costing him some standing with the Republican base. My impression, at the time, was that the governor was aware of those risks. On a Monday, he said that his critics needed remedial math lessons; he then turned around and added abortion to the call for the special session that was already in progress. And on the day he signed the budget, to widespread applause, he made a point of using his line-item veto to remove state funding from a unit overseen by a Democratic district-attorney who had just spent several weeks in prison.

If my thinking is correct—if his goal was to cover his right flank rather than to gut the PIU—it’s not hard to believe that months later, Perry (or his people) would let Democrats know that he was open to replacing Lehmberg with a Democrat, that he would help find another job for Lehmberg, and even that he would restore funding to the PIU if they proceeded with such a deal. In such negotiations, though, the governor may have extended his constitutional authority, and so if Perry did have such discussions, I suspect turn out that the prosecutor’s evidence will have more to do with those backroom agreements than with a public warning about his intention to exercise his constitutional powers. If so, the legal case against Perry might be more serious. The ethical case against him would potentially less so, though.

Peggy Fikac followed the grand jury investigation as it was going on, and she fills in some details from her perspective outside the jury room.

The grand jury meets behind closed doors, but we sat in the hallway with our laptops, getting an idea of where the case was going by the people who came and went during a half-dozen meetings before the big one last Friday.

There were current and former Perry staffers, Travis County employees and state lawmakers.

Each had a part – directly or through their expertise – in the drama surrounding Perry’s threat to veto funding for the public corruption unit overseen by Democratic Travis County District Attorney Rosemary Lehmberg unless she resigned after an ugly drunken-driving arrest.

The Republican governor had the clear right to veto the money, but the road to his indictment started with his use of that power to try to force out a locally elected official.

Each person’s presence was a piece of the story, even though it wasn’t clear how many of them actually testified to grand jurors.

There was Perry spokesman Rich Parsons. He was quoted in last year’s initial story on the threat, conveying Perry’s concerns to the Austin American-Statesman about “the integrity of the Public Integrity Unit” and saying his position had been relayed to Sen. Kirk Watson, D-Austin.

Watson was tapped to convey the veto threat to Lehmberg. At some point after the funding was killed, Travis County intergovernmental relations coordinator Deece Eckstein set up a meeting among Perry’s legislative director and former Democratic state Sen. Ken Armbrister from Victoria, Perry deputy chief of staff Mike Morrissey and Travis County Commissioner Gerald Daugherty, a Republican. Daugherty earlier told my colleague, Nolan Hicks, that he reached out to Perry’s office to see if there was a way to restore the two-year, $7.5 million in funds.

Sources told Hicks that if Lehmberg had been willing to resign, Perry aides offered to restore funding, allow Lehmberg to continue working at the DA’s office in some capacity and pick her top lieutenant as her successor.

All went into the grand jury room this summer; Armbrister did so several times.

Besides them were a former Perry chief of staff; his former and current general counsel, and an assistant general counsel; an adviser; and his former communications director.

Perry’s technology manager was among them; so was a Travis County Attorney’s office employee who works closely with the commissioners court; and Rep. Phil King, R-Weatherford, who last year pressed for Lehmberg’s resignation and said he couldn’t support using state dollars for her “utter disrespect of the law.”

Perry – who didn’t testify – told reporters in June that he didn’t initiate any sort of deal, and that he didn’t personally make phone calls with regard to asking Lehmberg to step down.

Asked about the post-veto machinations on Saturday, Perry said his decision making was clear. He said he had promised to “veto those dollars as long as they had someone in that office who I lost confidence in, and I did exactly what I said I would do.”

The takeaway from all this is that there’s almost certainly more to this than what we can see right now. If Mike McCrum is as smart and capable as people say he is, he’s surely got a few cards up his sleeve, which he’ll reveal when he’s ready. That doesn’t mean this can’t come crashing down around him once it hits a courtroom, but it does mean we don’t know enough to judge how this case will go just yet. Perry’s over the top response may be more of his usual bluster, or it may be because he knows what shoes are out there waiting to drop on him. We’ll know soon enough. Campos, Ed Kilgore, Alec MacGillis, the Trib, and Jim Moore have more.

On Mike McCrum and Pa Ferguson

There were two stories from Sunday about special prosecutor Mike McCrum that were worth flagging. First, here’s the Express News with an angle that I think has been underappreciated.

Mike McCrum

People who know McCrum said he is not the type to use a case to play politics. San Antonio defense attorney Patrick Hancock said McCrum is known for spelling out just the facts in court, while Alan Brown said McCrum does not care for politics and tries to steer clear of courthouse politics.

Brian Wice, who’ representing former House Majority Leader Tom DeLay, R-Sugar Land, in his appeal of money-laundering and conspiracy charges, looked askance at the indictment. But he simultaneously spoke highly of McCrum, saying he had “the utmost respect” for him.

McCrum, a former assistant U.S. attorney, was considered the frontrunner for a presidential appointment to be the U.S. attorney in the San Antonio-based Western District of Texas, which includes Austin, Waco and El Paso. But he withdrew his name from consideration in October 2010 after more than a year of waiting to be officially nominated by the White House, saying he had to get on with his career.

“I have not been able to take any cases for the past six to nine months, and as a result my practice has dwindled to almost nothing,” he told the San Antonio Express-News then.

At the time, he had the support of the state’s Democratic congressional delegation and both Republican senators, in addition to many local attorneys.

“I heard he was a hands-on kind of guy, kick the tires and get down in the weeds,” former Assistant U.S. Attorney Glenn MacTaggart told the Express-News when McCrum was being considered. “He pushed the proper due diligence in order to investigate and determine whether an indictment was justified.”

[…]

One of McCrum’s first jobs as an attorney was at the firm then known at Davis & Cedillo. Ricardo Cedillo described McCrum as “one of the best associates” he had ever hired, echoing others’ comments about McCrum’s thoroughness and analytical skills.

“He had street smarts as well as legal knowledge,” Cedillo said while McCrum was under consideration for the U.S. attorney position. “That’s a very rare combination in young lawyers. That goes to who he is and where he’s from.”

McCrum’s clients as a defense attorney have included former NFL star-turned-drug trafficker Sam Hurd; Dr. Calvin Day, who is awaiting a new trial after McCrum successfully lobbied to have his jury conviction for sexual assault of a patient thrown out; fellow lawyer Mikal Watts, a Democratic Party stalwart who has hosted President Barack Obama at his home; and Mark Gudanowski, the former driver for District Attorney Susan Reed accused — and acquitted — of illegally selling Southwest Airlines vouchers.

We were briefly introduced to Mike McCrum when he was named special prosecutor for this case, but that was much more cursory. What this story reminds us is that McCrum isn’t just a prosecutor. He’s also been a very successful defense attorney. As we saw yesterday, there are a lot of quotable defense attorneys out there poking holes in the indictments. One would think – at least, I would think – that someone like Mike McCrum, who has been on that side of the courtroom, would have analyzed this case and the evidence from that perspective as well, to better prepare himself for the courtroom battles to come. It’s certainly possible McCrum has missed the mark or gotten caught up in the job and focused too much on an end result, but I wouldn’t count on that. If he’s as diligent and as smart as people say he is, he’s got to have considered all this.

The DMN takes a more political angle.

Solomon Wisenberg, a Washington lawyer who has known McCrum since 1989, when they worked together as assistant U.S. attorneys, said his friend is not partisan.

Referring to Perry’s indictment, Wisenberg said: “There are people who are politically motivated who are probably happy about it. There are people on the other side who think it must be politically motivated.

“I know Mike well and I don’t think he would be that way. He is not readily identifiable as a Republican or a Democrat.”

Gerald Reamey, a professor at St. Mary’s University School of Law in San Antonio, taught McCrum criminal law and procedure.

“In his personal life and his professional life, there is some evidence that he is a fairly conservative person,” Reamey said. “He was prosecuting high-profile drug offenses. At the same time, he fits well into the criminal defense role.

“He’s very fair-minded and balanced, the kind of guy who would prosecute something only if he thinks the evidence is there,” Reamey said. “When I think of overzealous prosecution, he is not someone who comes to my mind.”

[…]

According to campaign finance records, McCrum has made only a handful of contributions to state and federal candidates.

He gave $300 in 2007 to Steve Hilbig, a Republican judge on the state appeals court based in San Antonio.

Also that year, McCrum donated $500 to U.S. Rep. Charlie Gonzalez, a San Antonio Democrat.

The next year, he contributed $500 to Republican Robert “Bert” Richardson, a Bexar County district court judge. Richardson assigned McCrum as the special prosecutor after a watchdog group filed its abuse-of-office complaint against Perry.

A little history here. When the complaint was filed by Texans for Public Justice against Perry, Travis County DA Rosemary Lehmberg recused herself from investigating it. That sent the complaint to the district courts of Travis County, where it was assigned to Judge Julie Kocurekof the 390th District Court. Kocurekof, a Democrat, recused herself as well. That kicked the case to the 3rd Circuit Court of Appeals, where presiding Judge Billy Ray Stubblefield got it. Stubblefield then assigned the case to Senior Judge Bert Richardson, who I presume will be the judge from here on out barring anything weird. Richardson named McCrum as special prosecutor, since the Travis County DA had taken itself out, and the rest you know.

Well, actually, there’s one more thing you might not know. Both Judge Stubblefield of the 3rd Court of Appeals, and Judge Richardson, who is a Senior Judge after losing election in 2008, were originally appointed to their positions. By Rick Perry. Quite the liberal conspiracy working against him there, no?

One more piece of history, from the Trib. Rick Perry isn’t the first Texas Governor to run afoul of the law in this way.

A Travis County grand jury’s allegations on Friday that Gov. Rick Perry improperly threatened to veto funding for the state’s anti-corruption prosecutors marked the first time since 1917 that a Texas governor was indicted. That year, Gov. Jim “Pa” Ferguson was indicted by a Travis County grand jury on allegations that he meddled with the state’s flagship university amid a squabble with its board of regents.

In Ferguson’s case, he vetoed $1.8 million over two years (about $34 million in today’s dollars) for the University of Texas; in Perry’s case, it was $7.5 million for the Public Integrity Unit, which is overseen by Travis County District Attorney Rosemary Lehmberg. After Lehmberg pleaded guilty to drunken driving, Perry threatened to pull state funding from her office unless she resigned.

Ferguson’s indictment led to impeachment by state legislators in September 1917. That’s highly unlikely for Perry, a lame duck with an overwhelmingly conservative Legislature who is facing felony charges for his threat — one he made good on — to veto funding for of the unit charged with investigating public offices in Texas, including that of the governor.

But there are striking similarities. Ferguson, a Bell County native who worked as a rancher and a banker before becoming governor in 1914, got in trouble for trying to remove public officials who had opposed him. Two of the articles of impeachment that removed Ferguson from office accused him of having “invaded the constitutional powers of the [University of Texas] board of regents” and “sought to remove regents contrary to law,” wrote Cortez Ewing in the journal Political Science Quarterly in 1933. Ferguson’s veto of the university’s entire legislative appropriation also prompted outrage, though he was not impeached on that point.

And the regents were goading a legislative investigation into embezzlement of state funds and improper campaign finance by Ferguson, while today, some believe Perry wanted the Public Integrity Unit gone because it was investigating possible corruption of state programs — including the Cancer Prevention and Research Institute of Texas. Perry has adamantly denied that, saying that he was entirely motivated by Lehmberg’s bad behavior.

I wouldn’t read too much into any of that, but it’s an interesting piece of history. We may as well learn as much as we can about this case, because for sure they’ll be teaching it to our kids and grandkids some day.

More on the Perry indictment

Just some more thoughts and links relating to the big story that turned a relatively quiet Friday into one of the busiest news day of the year so far. Let’s start with a reality check from Harold Cook.

Corndogs make bad news go down easier

This corndog has done nothing wrong

First of all, I’m a bit puzzled by the indictment. It seems weak to me. When the criminal complaint was first made following Perry’s veto of Lehmberg’s Public Integrity Unit, it seemed weak to me then, too. But then, Special Prosecutor Michael McCrum remarked publicly that he was especially concerned about Perry’s actions post-veto, which might rise to the level of breaking the law.

Finally, an aspect of this that made sense to me. Except that in reading the actual two-count indictment, it appears to focus on Perry’s veto, and his threatening words before the veto. A layman reading between the lines of the indictment would conclude that, while it’s perfectly legal to line-item veto a DA’s budget, it’s illegal to threaten to veto a DA’s budget, if you then subsequently veto that budget.

Don’t get me to lying – I’m not going to practice law without a license on this situation, but personally that seems like (good)hair-splitting. I’m left wondering whether the case is weak, or whether there are smoking gun-like aspects of a strong case which aren’t spelled out in the indictment. Either thing, or both things, are entirely possible. Only time will tell.

The trial, if there is one, may come down to whether the Governor was within his Constitutional rights, threat or no threat, in vetoing a line item, or whether he was out of his lane by trying to circumvent a legal process by which a district attorney may legally be removed from office (a process in which, incidentally, Lehmberg prevailed).

The second notable item related to the indictment is that I have seldom seen such breathless hyperbole, misdirection, and misinformation launched in any situation than I have in this one. Opinion leaders from the left, the right, and even from some journalists, are guilty of it.

I’m no more a lawyer than Harold is, but I think if it comes to a trial, the prosecution has a pretty straightforward story to tell. If I were in charge of this case – Lord help us if I were, but stay with me here – what I would present to the jury is a simple tale of coercion. One elected official does not have the right or the authority to force another elected official to resign, especially by making threats. The only authority Rick Perry has over Rosemary Lehmberg is what any other registered voter has over her. Let’s pretend for a moment that the DUI never happened and there is no CPRIT investigation to speak of. We all agree that if Rick Perry had just out of the blue told Rosemary Lehmberg in 2013 to resign or he’d veto funding for the Public Integrity Unit, that would be suspicious, right? Perry’s always been free to veto the PIU funding. It’s actually a little surprising that he hasn’t put pressure on the Lege to cut that function out of the Travis County DA office and give it to the Attorney General or something like that. But he hasn’t, maybe because it wasn’t worth the effort and the political fallout, or maybe he just had other fish to fry. Then Lehmberg goes and gets herself busted for drunk driving, and now maybe Perry has a wedge. That doesn’t give him any more right to threaten the duly elected Lehmberg than he’d had the day before she made the poor choice to get behind the wheel after downing too much vodka. One elected official cannot coerce another. I think a jury will have an easy time grasping that.

Harold also muses about how odd it is for Perry to get indicted for doing something he could have easily done on the QT without raising any eyebrows. It’s absolutely true that in the aftermath of Lehmberg’s arrest Perry could have joined the calls for her to resign without explicitly mentioning the PIU funding, and he could have vetoed the PIU funding later saying that it made no sense for someone who lacked integrity to head up a Public Integrity Unit. It was publicly connecting the two that landed him in the soup. Isn’t that often how it is with criminal activity? The perpetrator could have gotten away with it if only someone – usually but not always the perps themselves – had kept their big mouth shut. I find a deep well of irony and humor in this, but I don’t see any contradiction.

Against all that you’ve got the Chron and the Statesman running stories with lots of quotes from defense attorneys and law professors saying that McCrum has a high bar to clear to get a conviction. I can only presume he thinks that he can, because by far the path of least resistance would have been to drop the whole thing. I’m glad this is his job and not mine, that’s for sure.

Harold has a lot more to say at his post and you should go read it all because he makes a lot of sense. On the subject of keeping one’s mouth shut, it’s interesting to see the reactions to this so far from Wendy Davis and Greg Abbott. Here’s Davis:

State Sen. Wendy Davis, the Democratic nominee for governor, passed on the opportunity Saturday morning to call for Gov. Rick Perry’s resignation following his indictment by a Travis County grand jury.

Speaking with reporters before a block walk in Plfugerville, Davis reiterated her statement Friday that she was troubled by the charges against Perry, which stem from his threat to veto funding for the state Public Integrity Unit unless Travis County District Attorney Rosemary Lehmberg resigned. Lehmberg’s office controls the unit, which aims to enforce ethics among public officials.

Asked whether Perry should step down, Davis told reporters: “As I said, there will be, I’m sure, more information that comes to light. I trust that the justice system will do its job, and these indictments handed down by the grand jury demonstrate that some very seriously potential crimes have been committed.”

As the story notes, the Texas Democratic Party and at least one elected official, Rep. Joaquin Castro, have called for Perry to step down. It’s very much in Davis’ interest to not get invested in this. For one thing, there is a non-zero chance that the indictment could get tossed. For another, it does her no good for this to be seen as just another partisan dispute. Her story line is one of a “culture of corruption” that Perry embodies and Abbott represents, and it’s much better for her if the evidence for that is as objective and non-partisan as possible. There’s also a principle at play here, which Juanita captures:

I am not one of the folks calling for Rick Perry to step down as Governor and I believe it is a major mistake to do so.

I am a Democrat and therefore I believe in the rule of law. You are innocent until proven guilty. Period. No exceptions. None.

Additionally, we Democrats were all outraged when Rick Perry asked District Attorney Lehmberg to step down. We were right to be angry. We even supported her when she was found guilty and served her jail sentence. Her behavior was unacceptable but we stood behind her. It seems more than a tad duplicitous for us to now call for Perry’s resignation.

Hard to argue with that. As for Abbott, he expressed his doubts about the indictment on a Fox News appearance but declined to say more than that, saying he hadn’t read it yet. My guess is that after he does read it he won’t say much more than that. Like Davis, there are risks for him if he throws his full weight behind defending Perry. Perry is highly unlikely to go to trial before November, but Abbott has to think longer term than that. It would not be good for him as Governor if there’s a trail of full-throated statements of support by him of Perry and he winds up going down in a way that leave no doubt about his guilt. Enough bad information could come out about Perry and the evidence against him between now and November to have a significant effect on public opinion, and he doesn’t want to be too closely associated with that.

A bit of history, since the name Tom DeLay has come up quite a bit and will no doubt continue to do so. DeLay was indicted in October 2005, and eventually resigned in June 2006 after trying to withdraw from the race in CD22 by claiming that he was a citizen of Virginia and thus ineligible to be the nominee. The goal there was to get another nominee on the ballot, as DeLay’s shenanigans meant that CD22 was in danger of being won by Democrat Nick Lampson in a year where Republicans were (rightly) worried about losing their majority in the House. DeLay’s gambit ultimately failed and Lampson prevailed over the epic write-in candidacy of Shelley Sekula Gibbs. My point in bringing this up is that while DeLay did resign, he did so for his own reasons and with other considerations in mind. Democrats were happy to have him on the ticket for as long as possible.

There is one clear-cut line of attack Davis can take that Abbott could be vulnerable to. Here’s Burka to point it out.

The indictment of Rick Perry turns Texas politics upside down. He can’t be a serious presidential candidate when he is facing a potential jury trial. But it also has serious affects for the state party. An obvious issue is that Greg Abbott has previously ruled that the state could pay for Perry’s defense. Does anyone think the Democrats are going to sit idly by and allow Perry to continue to spend large sums of money on his defense when he stands accused of breaking the law? Not a chance.

My archives show that Abbott was asked for an opinion about this, but it appears that request is still pending. Given the other ways in which Abbott has helped Perry it’s easy enough to imagine a similar ruling, and it’s easy enough to imagine the attacks even in the absence of such a ruling. One can certainly make a case that criminal defense of an action taken in the official capacity of the office of Governor should be paid for by the public, but boy is that a tough thing to stick up for when the chips are down. I’d feel sorry for the position Abbott is in if I were a better person.

And finally, the Trib has the official word from the man of the hour his own self.

A steamed Texas Gov. Rick Perry on Saturday decried a Travis County grand jury’s indictment of him on two felony counts, saying allegations that he abused his power by threatening to veto funding for the state’s anti-corruption unit were politically motivated.

“We don’t settle political differences with indictments in this country,” Perry said in a short press conference. “It is outrageous that some would use partisan political theatrics to rip away at the very fabric of our state’s constitution. This indictment amounts to nothing more than abuse of power and I cannot and I will not allow that to happen.”

Perry — who followed through on the threat because Travis County District Attorney Rosemary Lehmberg, who had pleaded guilty to drunken driving, refused his request to step down — said his actions were protected by the state Constitution, and that he and his attorneys would aggressively fight the charges. They include abuse of official capacity, which carries a potential penalty of five to 99 years in prison, and coercion of a public servant, which has a penalty of two to 10 years.

“I intend to fight against those who would erode our state’s constitution and laws purely for political purposes and I intend to win,” he said. “I’ll explore every legal avenue to expedite this matter. I am confident that we will ultimately prevail, that this farce of a prosecution will be revealed for what it is. And those responsible will be held accountable.”

Mighty big words there, cowboy. Fasten your seatbelts, y’all. BOR, Main Justice, Trail Blazers, the AusChron, Texas Politics, the Trib, Juanita, and Martin Longman have more.

Perry indicted

Wow.

Corndogs make bad news go down easier

Corndogs make bad news go down easier

A grand jury indicted Gov. Rick Perry on Friday on charges of abuse of power and coercion as part of an ethics inquiry into his veto of funding for the state’s public integrity unit.

The inquiry began last summer after an ethics complaint was filed alleging that Perry had improperly used a veto to deny funding for the unit, which is housed in the Travis County district attorney’s office and focuses on government corruption and tax fraud.

The indictment throws a major wrench in Perry’s possible presidential ambitions; he was in Iowa last week and was expected in both New Hampshire and South Carolina in coming weeks. Perry is the first Texas governor to be indicted in almost a century.

Perry had been riding high and making national headlines in recent weeks, railing against the Obama administration for a perceived lack of response to the humanitarian crisis on the Texas-Mexico border, then reallocating funds to send National Guard troops there himself.

Now, he’ll be playing defense.

The first count, abuse of official capacity, is a first-degree felony with a potential penalty of five to 99 years in prison. The second count, coercion of a public servant, is a third-degree felony with a penalty of two to 10 years.

Michael McCrum, the special investigator in the case, said he interviewed more than 40 people and reviewed hundreds of documents in the case.

He said that a time would be set up for Perry to come to court, be arraigned and given official notice of his charges.

I’ve done a ton of blogging on this, so click away for the backstory, or read the NYT story and this Observer explainer to get caught up. You can also see the original complaint and press release from TPJ. The key thing to keep in mind is that while a lot of headlines (like this one) will say that Perry was indicted because of the veto of the Public Integrity Unit funds, that’s really not quite accurate. It was the threat of the veto combined with the demand that Travis County DA Rosemary Lehmberg – elected by the people and not answerable to Rick Perry – accede to Perry’s order or else. That’s where he overstepped his bounds, and it’s what the veto is all about. What happens from here – other than the you-know-what hitting the fan – is anyone’s guess. Remember how Tom DeLay was indicted in 2006 and his legal fate is still unresolved? We could be here for awhile, is what I’m saying. Texas Politics, Trail Blazers, the HuffPo, the Statesman, the Observer, Hair Balls, Burka, the Current, Juanita, the AusChron, PDiddie, Ross Ramsey, and Progress Texas have more.

Perry grand jury may be winding down

We are getting close to some action on this.

Corndogs make bad news go down easier

This corndog has no comment

A grand jury looking into whether Gov. Rick Perry abused his power with a veto threat appears closer to wrapping up after current and former Perry staffers were behind closed doors with the panel Friday.

“It’s getting to the point where we’ll have talked to all the people that we need to talk to. It’s getting closer to that point,” said special prosecutor Michael McCrum, a San Antonio lawyer.

McCrum said he hadn’t talked to Perry, who is considering a second presidential run in 2016. He said two weeks ago that he had no plans at that point to call the governor to testify.

The grand jury next is scheduled to meet July 11.

A member of the Public Utility Commission, Brandy Marty, on Friday entered the room where the grand jury is meeting. Marty is Perry’s former chief of staff and was policy director for his 2010 primary campaign for governor. He named her to the PUC last August.

See here, here, and here for the most recent of my updates. I’ve missed a couple of newer stories, like this one about other Perry aides being called, and this one about Chron reporter Mike Ward, who had broken a story about the Perry/Lehmberg saga while working for the Statesman, being called. Not really much more to add here, since the proceedings are secret. We may know more when the jurors reconvene on July 11.

Rick Perry really wanted Rosemary Lehmberg to quit

From the Trib.

Rosemary Lehmberg

Even after Gov. Rick Perry stripped funding for the agency that prosecutes state public corruption cases, his emissaries worked to swap the resignation of embattled Travis County District Attorney Rosemary Lehmberg for restoration of the money, several sources told The Texas Tribune this week.

The Tribune learned of the proposal as a grand jury considers whether Perry overstepped his authority last year when he threatened to veto the public integrity unit’s state funding if Lehmberg did not step down after she was arrested for drunken driving. The sources said the offer was made to Lehmberg through several back channels: If Lehmberg — a Democrat whose office was in charge of investigating state officeholders — would resign, Perry would restore the two years in state funds, about $7.5 million, that he had vetoed following her April 12, 2013, arrest and subsequent guilty plea.

“It was communicated to me if she stepped out, [Perry] would restore the funding,” said Travis County Judge Samuel T. Biscoe, a Democrat who said he was one of several people made aware of the proposal from Perry’s office. “I was told his office made the representations.”

[…]

Several sources, who asked not to be identified, citing the grand jury investigation, told the Tribune that Lehmberg was informed of the proposal last July. She was also told, they said, that the proposal came from the governor’s office, about a month after Perry made good on his threat to veto the state funds to the public integrity unit.

“It happened,” one of those sources told the Tribune.

The same sources said Lehmberg rejected the proposal outright because of concerns that such an offer may be illegal.

Reached late Tuesday, Lehmberg declined to comment for this story because of the ongoing grand jury investigation.

Rich Parsons, a spokesman for Perry, said no one from the governor’s office met with Lehmberg.

“Neither the governor nor any member of staff met with or spoke with Ms. Lehmberg,” Parsons said.

Asked if anyone from the governor’s staff told others to convey any offer, he declined to comment, citing the pending grand jury investigation.

That’s a pretty specific, and pretty limited, denial. It does not in any way negate the thesis of this story. Turns out, according to Texas Politics, that’s because Travis County Commissioner Gerald Daugherty, the lone Republican on that Court, was the go-between. He confirmed that the key point was Lehmberg resigning; Daugherty blamed her refusal to budge as the reason nothing happened. Now can we agree that – if this story is true – this is about more than just a run-of-the-mill veto by Rick Perry? The Observer, which points out what may turn into Perry’s defense strategy, has more.

The Rick Perry grand jury convenes

Game on.

Rosemary Lehmberg

A grand jury was sworn in Monday to look into whether Gov. Rick Perry acted improperly last year when he threatened to kill funding for the Travis County district attorney’s public corruption division unless District Attorney Rosemary Lehmberg resigned after her drunken driving conviction.

The office of the governor – who carried through on the veto threat – has hired defense lawyer David Botsford to “ensure the special prosecutor receives the facts in this matter,” Perry spokeswoman Lucy Nashed said.

“The facts will show this veto was made in accordance with the veto power afforded to every governor under the Texas Constitution,” she said. “As we have from the beginning, we remain ready and willing to assist with this inquiry.”

Because the inquiry concerns actions by Perry in his official capacity, Botsford’s $450-an-hour fee is expected to be paid from general revenue, Nashed said.

Much as it pains me to say it, that is appropriate. Perry could of course offer to pay for it from his ample campaign funds, and I’m sure he’d have no trouble getting a sugar daddy or two to cover the tab, but he’s not required to do so.

Texans for Public Justice, which tracks money in politics, last year filed a complaint with prosecutors over Perry’s threat, contending he violated laws against coercion of a public servant, abuse of official capacity, official oppression and, potentially, bribery.

Craig McDonald, director of Texans for Public Justice, emphasized that the group’s focus is on Perry’s threat. He said the group does not question Perry’s right to veto the funding itself.

“He’s got the authority to veto whatever he wants. He just can’t threaten to use his official pen or his official act against anyone, let alone the DA,” McDonald said.

[…]

Political experts suggested a criminal case against Perry for the veto threat is a long shot.

“I don’t think anybody’s going to prison for signaling that they would utilize their veto power to try to encourage an outcome. If that were the case, then I think pretty much every governor in the United States at one point or another would be guilty as charged,” Rice University political scientist Mark Jones said.

Oh, for crying out loud. Can we not agree that there’s something problematic with an elected official demanding that another elected official resign her office, and using the power to veto funding for her office as a threat to make her resign? As District Attorney, Rosemary Lehmberg can convene a grand jury to investigate anyone she thinks might have committed a crime. If she had demanded that a member of Austin City Council resign for whatever the reason, and threatened to convene a grand jury to investigate every member of that Council person’s staff if he didn’t resign, then followed through on it afterward, would we not agree that that is an abuse of her power? It doesn’t matter if this hypothetical Council member has done anything that might merit a grand jury investigation. The point is that there are limits on the power, and going beyond those limits is at the least a concern and may be a crime. I don’t see what’s so hard to grasp about that. If the grand jury comes back with a no-bill based on their understanding of the law and the evidence presented, then so be it. We built limits on the powers of our elected officials in Texas for a reason. It’s appropriate to check when we think an elected official may have attempted to exceed the power of his or her office. Texas Politics has more.

Perry lawyers up

It’s getting real.

Rosemary Lehmberg

Texas Gov. Rick Perry has hired a high-profile Austin defense lawyer to represent him in an investigation into whether he illegally withheld money from the Travis County District Attorney’s office.

KVUE News and the Austin American-Statesman confirmed Sunday evening the hiring of David L. Botsford.

The hiring comes as a special Travis County grand jury is set to be seated Monday to hear evidence into whether Perry broke state laws concerning bribery, coercion and abuse of authority.

[…]

Botsford said Sunday night, “The matter at hand pertains to the power of the governor to issue vetoes as allowed under the Texas Constitution. I have been retained to ensure that (the special prosecutor) receives all the facts, which will show that the governor’s veto was carried out in both the spirit and the letter of the law.”

See here, here, and here for the background. Attorney Botsford must be good at what he does, because he’s already obfuscating the facts. The issue, as I’ve said repeatedly, is not that Perry vetoed the funds but that he threatened to veto them unless Travis County DA Rosemary Lehmberg resigned. Trying to force out another elected official in this manner is the no-no. Had Perry simply vetoed the funds without yapping about it beforehand, there would be no allegation of wrongdoing. I can’t wait to see what the grand jury, which has been seated, makes of this. Jason Stanford and Juanita have more.

Perry special prosecutor is “concerned”

As are we all.

Rosemary Lehmberg

A special prosecutor investigating whether Gov. Rick Perry abused his authority when he eliminated state funding of the Texas public integrity unit — which investigates government corruption and is housed in the Travis County district attorney’s office — said what he’s found so far is “concerning.”

“I cannot elaborate on what exactly is concerning me, but I can tell you I am very concerned about certain aspects of what happened here,” San Antonio attorney Michael McCrum said in an interview with the Austin American-Statesman and KVUE-TV.

In that same interview, McCrum would not indicate whether he thinks a crime was committed when Perry withheld $7.5 million in state funding from Travis County District Attorney Rosemary Lehmberg’s office because she didn’t resign after she pleaded guilty to a drunken driving charge a year ago.

Asked by the Statesman and KVUE if his concerns pointed specifically at Perry or his staff, McCrum said, “Yes.”

Perry announced last summer that he would veto funding to the state’s public integrity unit if Lehmberg didn’t step down once the guilty plea was made public. Lehmberg didn’t resign, and the governor followed through on his threat, vetoing the two-year, $7.5 million in funding.

McCrum, who plans to present his investigation results to a special Travis County grand jury next month, could not be immediately reached by The Texas Tribune for further comment.

Lucy Nashed, a spokeswoman for the governor’s office, said Perry stands by his actions.

“As he has done following every session he’s been governor, Gov. Perry exercised his constitutional veto authority through line-item vetoes in the budget,” she said.

See here, here, and here for some background, and here for the KVUE story. As has been discussed before, the point of contention is not that Perry vetoed the Integrity Unit funds, but that he threatened to do so unless Lehmberg resigned. It’s the threat plus the demand that may add up to a coercion charge. I have no idea what will happen with the grand jury, but I do know that if you take a shot at the king, you’d better bring him down. I look forward to seeing how this plays out. Juanita has more.

Lehmberg beats the rap

Good for her.

Rosemary Lehmberg

District Attorney Rosemary Lehmberg will remain in her position as the top felony prosecutor in Travis County, visiting Judge David Peeples ruled Wednesday.

Lehmberg hugged her supporters in the courtroom after the decision was read, shedding tears.

In closing arguments, Jim Collins, an assistant county attorney prosecuting the case, argued that keeping Lehmberg in office would harm the public interest. He said Lehmberg had a pattern of lying and was not managing her problems with alcohol.

On April 12, when she was arrested for drinking and driving, she was so drunk she could not walk and did not know where she was, Collins said. But it was not her single instance of intoxication, he said, pointing to receipts from Twin Liquors that he said showed she had spent about $8 on vodka a day.

“It is nothing else but by the grace of God that we’re here for a removal hearing and not a funeral,” Collins said. Later he said, “She lies even under oath — mostly she lies about what she drinks.”

But Lehmberg’s attorney, Dan Richards, argued that the state had not proved its case. Lehmberg had pleaded guilty within a week of her arrest and served her punishment. She was seeking treatment and her duties had never been affected, Richards said.

“I am a believer in redemption. I am a believer in Ms. Lehmberg,” Richards said. “And I am a believer in recovery.”

Not the most compelling argument I’ve ever heard, but it worked. I have no idea how much of a running punchline she may be in Austin, but I never thought she committed a firing offense, and I thought she was right to stand her ground against Rick Perry. She’s already said she won’t run again in 2016, so here’s hoping she can get her personal life in order and rehab her image between now and then. In the meantime, we’ll wait to hear more from the special prosecutor who is investigating Rick Perry in regard to the veto threat. Isn’t the term of that grand jury up around now?

Perry special prosecutor seeks to hire investigator

Moving right along.

Rosemary Lehmberg

The special prosecutor in an ongoing investigation into whether Gov. Rick Perry violated state law by vetoing funding for the Travis County ethics-enforcement unit is seeking to hire an investigator and researcher, the first public hint the probe is moving forward past its initial stage.

In a request filed Tuesday in Travis County district court, Michael McCrum of San Antonio sought court approval to fill the temporary staff positions at a maximum cost of $2,500.

[…]

“I want to look into some matters, some issues that need to be examined and answered as a part of this case,” McCrum told the American-Statesman. “It will be cheaper for an investigator and a researcher to do it, and will keep me from being a witness in the case if I do the research myself.”

McCrum, a former assistant U.S. attorney who is now a criminal defense attorney, said the staff positions will begin work as soon as Senior District Judge Bert Richardson of San Antonio approves the hiring.

The ethics enforcement unit at the Travis County district attorney’s office normally would investigate such a complaint, but the case was referred outside the county because the Public Integrity Unit is involved in the political drama over its funding precipitated by District Attorney Rosemary Lehmberg’s drunken driving conviction in April.

[…]

As the special prosecutor, McCrum could have looked at the complaint and dismissed it as unfounded — or he could move to further investigate it, which he has done. If the complaint is eventually validated through an investigation, officials said charges could be filed or presented to a grand jury.

Craig McDonald, executive director of Texans for Public Justice, applauded the move by McCrum. “We’re happy to see that the special prosecutor is moving ahead to look into these serious allegations, as we think he should,” he said.

See here and here for some background. I don’t know about you, but I like having the opportunity to put “special prosecutor” and “Rick Perry” in the same sentence. Rosemary Lehmberg was no-billed by her grand jury, so she has one less thing to worry about. Perry, not so much, at least at this time. Texas Politics and Progress Texas have more.

Grand jury convening in Perry/Lehmberg veto threat case

Can’t wait to see how this turns out.

Rosemary Lehmberg

A visiting state district judge began convening a special grand jury Wednesday to consider two possible criminal cases stemming from the April drunken driving arrest of Travis County District Attorney Rosemary Lehmberg.

The 12-member panel with two alternates, which may be seated as early as Friday, will help determine whether Gov. Rick Perry broke any law when he threatened to veto millions of dollars in state funding to Lehmberg’s office unless she resigned.

The grand jury will also help determine whether Lehmberg violated any state laws, including those concerning obstruction, resulting from her behavior in the Travis County Jail immediately after her arrest.

The grand jury will meet, hear evidence and deliberate in private. It can issue indictments or can decide criminal court action isn’t merited.

See here and here for other recent developments. According to KVUE, the grand jury is “expected to possibly consider jailhouse recordings that show Lehmberg dropping the names of both Travis County Sheriff Greg Hamilton and Austin Police Chief Art Acevedo”. I hadn’t known that Lehmberg’s behavior was also in scope, but it makes sense. Let’s get to the bottom of this once and for all and see what if anything needs to be done from here. Juanita has more.

UPDATE: Patricia Kilday Hart adds on.

San Antonio State District Judge Bert Richardson notified the special prosecutors he plans “to put together a grand jury to be at our disposal as we may need it,” said former Brazos County District Attorney Bill Turner, who was named special prosecutor for the complaint against Lehmberg. “It’s not at all unusual in an investigation to use a grand jury. They have the ability to subpoena witnesses and recover records. It’s part of an investigation.”

Turner said he expects the panel to be sworn in Friday. He will be working in concert with San Antonio attorney Michael McCrum, who was named as special prosecutor to handle the complaint against Perry.

[…]

The term of a Travis County grand jury is three months, unless the panel seeks additional time to complete an investigation.

I hadn’t realized there was a second special prosecutor involved. Good to know, as is the time frame. We may be done with this phase of the saga by the end of the year.

Special prosecutor appointed in Perry/Lehmberg veto threat case

Meet Mike McCrum.

Mike McCrum

District Judge Robert Richardson named Mike McCrum to look into a complaint filed by Texans for Public Justice against the governor. The watchdog group alleges that Perry abused his power by threatening to cut funding to the Public Integrity Unit if Travis County District Attorney Rosemary Lehmberg didn’t resign. The Democrat pleaded guilty to driving while intoxicated, served time in jail but pledged to remain in office for the rest of her term, which ends in 2016.

Perry subsequently used his line-item veto power to cut off state funding to the part of her office responsible for investigating state elected officials. Perry said he’d lost faith in Lehmberg’s ability to perform her duties. If Lehmberg had resigned, Perry would have appointed her successor. Perry has denied any wrongdoing

“As he has done following every session he’s been governor, Gov. Perry has exercised his constitutional veto authority through line item vetoes in the budget,” said Josh Havens, a spokesman for Perry.

[…]

McCrum is a criminal defense attorney and former federal prosecutor, who said in that role he has investigated public officials in the past. His role is to act as the acting district attorney in the case, determining if there is evidence of wrongdoing and prosecuting the case if necessary.

“I think the first steps are for me are to go and get a preliminary analysis as to what is really necessary (to complete an investigation),” McCrum said. “This matter requires that no rash judgment be made, that there be some careful consideration of all options.”

As noted before, the legal issue is not the veto itself but the “resign or else” demand that preceded it. Had Perry not shot his mouth off before issuing the veto, there would be no complaint. I look forward to seeing how McCrum proceeds. Trail Blazers and the Trib have more.